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“The stock market makes LE8 billion in profit following news of the judges supervising the referendum,” read a headline in the Muslim Brotherhood’s Freedom and Justice news website Tuesday.

The news piece goes on to describe a state of optimism amongst investors who are hopeful that stability will reign following a 15 December referendum on the finalized draft constitution. The piece further celebrates the fact that judges will oversee the referendum, which comes on the heels of open-ended disputes between the judiciary and President Mohamed Morsy.

Morsy has angered judges with a constitutional declaration issued 22 November which immunized his decrees from judicial oversight, and also protected the Islamist-controlled Constituent Assembly from judicial dissolution.

The Freedom and Justice Party website celebration follows the Supreme Judicial Council announcement Monday that it delegated judges and members of the Public Prosecution to supervise the referendum, in fulfillment of Article 39 of the 30 March 2011 Constitutional Declaration. The declaration is the document through which the country is currently constitutionally managed, and which stipulates judicial oversight over elections and referenda.

Divided judiciary

The country’s judiciary is largely divided into five different authorities: the Supreme Constitutional Court, the Public Prosecution and regular judiciary (primary and appeals courts and the Court of Cassation), the State Council, the State Cases Authority and the Administrative Prosecution Authority.

While the last three authorities have shown initial support to judicial oversight of the referendum, the position of the bulk of the regular judiciary remains ambiguous.

Divisions have marred the judiciary, especially following the statement by Ahmed al-Zend, the head of the Judges Club, announcing that judges would boycott the referendum until Morsy’s constitutional declaration is canceled.

Work in several courtrooms and prosecutions across the nation has been halted following the call for strike by the emergency General Assembly of the Judges Club presided by Zend, in protest at Morsy’s declaration.

“The majority of those polled from members of the Public Prosecution refused to participate in overseeing the referendum. Random samples were taken that showed 2,039 refusing to participate and 226 agreeing, and the results revealed that nearly 90 percent of the judges polled in courts across governorates refuse to oversee the referendum,” Zend said Tuesday.

This branch of the judiciary contains no less than 12,000 judges.

Meanwhile, judges clubs affiliated with courts outside Cairo have said the Cairo Judges Club’s call for boycotting the referendum is not binding, because judges are free and should not be dictated to. They also said that every Judges Club is autonomous and has to take its own position.

Gamal Eid, president of the Sohag Judges Club, describes Zend’s statements as inaccurate. The General Assembly for the governorates’ Judges Clubs has not actually convened, he says.

“The position of the Cairo Judges Club is not binding on anyone, and every judge has their personal orientations. I assure that there is disagreement around whether to oversee among primary courts and appeals courts in the different governorates. I sense that the majority agrees to oversee the referendum, which doesn’t mean those judges are affiliated with the Muslim Brotherhood or anything, but that it’s their personal choice,” he adds.

Legal experts see that the anti-referendum campaign led by Zend, who is known to be a supporter of former President Hosni Mubarak, is part of a continued battle against some figures supporting judicial independence, such as Hossam al-Gheriany, president of the Constituent Assembly and former president of the Supreme Judicial Council, as well as Ahmed Mekky, the current justice minister.

Mekky, who is now part of the ruling apparatus, had revealed violations of former President Hosni Mubarak’s regime in previous elections and criticized Zend for supporting it.

However, Abdallah Fathy, deputy of the Judges Club and vice president of the Court of Cassation, says Zend’s account is correct.

“This referendum kills legitimacy, because [the constitution] lacks consensus from the people, so how can we as judges oversee it? I hope that the judges respond to the call to boycott as they did to the strike. Lack of a clear stance by judges weakens our position in confronting this illegitimate regime,” says Fathy.

Judges Clubs act as syndicates whose presidents and board members are elected by a general assembly made up of judges from the different authorities that the clubs represent. A club cannot oblige its members to do anything, because the Judicial Authority Law doesn’t penalize judges if they refrain from overseeing the elections, as this is an additional task.

Meanwhile, judges differ over the judges clubs’ authority to take positions on overseeing the referendum, with some saying that only the general assemblies of the respective authorities are entitled to determine the judges’ position.

Magued Shebeita, a judge in the State Council and its representative in the Constituent Assembly, says the judges clubs’ decisions are not binding on its members. He adds that the Supreme Council of the State Council already submitted to the Justice Ministry a list of 1,000 judges from 2,500 existing judges in the council to supervise the referendum.

He expects that members of the State Cases Authority and the Administrative Prosecution Authority will follow suit.

“The Supreme Council is the legal representative of the State Council. The decisions of the [Judges] Club can be motivational by means of showing solidarity with forces against the draft constitution. The referendum is a national duty that we cannot let go of. We cannot strike and ignore the law that stipulates judicial oversight. This would rid the constitution of its legitimacy,” says Shebeita.

Different motivations

The Supreme Judicial Council announcement Monday was followed by statements by boards of the State Council, which is the umbrella for the administrative judiciary and the High Administrative Court, as well as the Administrative Prosecution Authority, which looks into cases where state institutions are party, and the State Cases Authority, which represents the official body of state attorneys. The statements positively responded to the council’s delegation and assigning judges to supervise the referendum.

Some analysts argue that, for the three authorities that issued statements assigning judges to oversee the referendum, there have been several favorable allocations for them in the draft constitution that entice them to perform their oversight duties. These allocations include the expansion of their authorities and functions, and the granting of legal immunity to the State Cases Authority and the Administrative Prosecution Authority, which was not present in the outgoing 1971 Constitution.

Constitutional law expert and former Constituent Assembly member Gaber Nassar sees a connection.

“The Constituent Assembly saw several discussions for months about the position of these judicial authorities in the constitution, such as the State Cases Authority and the Administrative Prosecution Authority. I see that a lot of the members of both these authorities will participate in the referendum on the constitution after the addition of articles that expand their authorities in the new draft. Their thank-you note to the ruling Islamist current, which also controlled the Constituent Assembly, is to supervise the referendum,” he says.

After two months of protests at the Constituent Assembly by members of the State Cases Authority and the Administrative Prosecution Authority, Articles 179 and 180 came out in a way that respond to their demands after they were initially ignored.

For example, in Article 179, the State Cases Authority was granted the technical supervision of more than 120,000 lawyers and legal researchers working in the bureaucracy. The article also empowered the authority to assign legal experts to civil and commercial disputes in which the state is party, which was previously reserved to the court.

The addition of both those authorities in the new constitution gives them immunity, as well as all rights granted to judicial authorities.

Ashraf Mokhtar, vice president of the State Cases Authority, defends the authorities’ positions. “What was added in the constitution will only serve justice. The current stipulations will alleviate courts in cases in which the state is a party, and these cases are in the hundreds every year and take years to be settled. Supreme Council left it to the members of the authority to decide whether they will participate in the referendum or not. Where is the deal?” asks Mokhtar.

Ahmed Galal, spokesperson of the Administrative Prosecution Authority, defends them as well.

“The constitution is done and will be presented to the people. The new position of the authority has been accepted there and cannot be removed, regardless of talk about the presence of a deal,” says Fahmy.